16885 research outputs found
Sort by
Workplace Wellness Programs: Empirical Doubt, Legal Ambiguity, and Conceptual Confusion
Get PDFFederal laws that protect workers from insurance discrimination and infringement of health privacy include exceptions for wellness programs that are “voluntary” and “reasonably designed” to improve health. Initially, these exceptions were intended to give employers the flexibility to create innovative wellness programs that would appeal to workers, increase productivity, and protect the workforce from preventable health conditions.
Yet a detailed look at the scientific literature reveals that wellness program efficacy is quite disputed, and even highly touted examples of program success have been shown to be unreliable. Meanwhile, the latest administrative regulations on wellness programs were vacated by a district court in January 2019, leaving the legal scope of wellness programs in flux. The U.S. District Court of Connecticut now has a case before it that could start a national overhaul of these programs.
In this Article, we give a scientific and legal overview of wellness programs and explain why wellness programs are a source of ethical controversy. Given the unsteady evidence on wellness programs’ benefits and their real potential risks, we argue that more should be done to regulate their scope and design. A robust interpretation of the relevant statutes would help protect workers in the face of indecisive evidence. To this end, we conclude with an attempt to resolve the widespread disagreement over the terms “voluntary” and “reasonable design” with the goal of providing courts and regulators with a more workable framework to apply
Theories of Prosecution
Get PDFFor decades, legal commentators sounded the alarm about the tremendous power wielded by prosecutors. Scholars went so far as to identify uncurbed prosecutorial discretion as the primary source of the criminal justice system’s many flaws. Over the past two years, however, the conversation shifted. With the emergence of a new wave of “progressive prosecutors,” scholars increasingly hail broad prosecutorial discretion as a promising mechanism for criminal justice reform.
The abrupt shift from decrying to embracing prosecutorial power highlights a curious void at the center of criminal justice thought. There is no widely accepted normative theory of the prosecutorial role. As a result, prosecutors are viewed as the criminal justice system’s free agents, deploying the powers of their offices as they see fit to serve constituents, public safety,or, most broadly, the cause of justice.
This Article uses the rapidly shifting views about prosecutors to explore normative theories of prosecution: What should prosecutors be doing? It highlights the emptiness of the current “do justice” model and proposes an alternative “servant-of-the-law” theory of prosecutorial behavior that could place real constraints on prosecutorial excess. It also explores ways in which a servant-of-the-law model could, perhaps counterintuitively, contribute much-needed theoretical grounding to the progressive prosecution movement
The Supreme Court and the 2020 Election: What Challenges are likely and what will be the Supreme Court\u27s Role in Deciding them?
Get PDFOn Friday, September 11 at 5:30pm, the Supreme Court Preview will feature a panel on The Supreme Court and the 2020 Election What Challenges are likely and what will be the Supreme Court\u27s Role in Deciding them? As we approach a historic election in November 2020, many anticipate that election challenges will wind up in federal court. This panel will discuss trends in COVID-related election cases at the Court so far, anticipate which challenges are likely going forward, and will speculate what the Supreme Court’s role will be in deciding them. What has changed at the Court (and otherwise) since Bush v. Gore? How is the Chief Justice likely to navigate election cases before the Court? What role does (and should) the Court play in post-election litigation
Comments on McGahn A Brief History of Judicial Appointments From the Last 50 Years Through the Trump Administration
Get PDFDonald McGahn is a respected member of the Washington D.C. legal community, known especially for his expertise in election law. He served as White House counsel in the Trump administration until October 2018 and was a key player in the Trump administration’s judicial appointments process.His article is witty, sometimes revealing, but above all a description, as he sees it, of the decades-long deterioration of the process for Senate confirmation of federal judicial nominees, with some blame assigning. He also provides a few behind-the-scenes looks at Trump administration confirmation battles, and some recommendations for easing contentiousness in— or at least, speeding up—the process. While he does not hide his Republican leanings—e.g., “President Carter made no Supreme Court appointments ... thankfully”—this is in no way a slash-and-burn propaganda piece.
His article stands for two propositions—first, the process has deteriorated and, second, although, there is blame to go around, Democrats deserve more of it than Republicans. The article also vindicates the always timely aphorism that the plural of “anecdote” is not “data.” McGahn argues primarily from example. Those he cites are illustrative and help flesh out his arguments, but they are less dispositive than they might appear on first blush. Of course, examples are one staple of most any argument—this commentary included—but McGahn relies on them largely to the exclusion of aggregate data.
To be sure, the article is a lightly edited revision of a conversational law school lecture and does not purport to be an academic article weighed down by dense scholarly apparatus. That in some ways is one of its virtues. But even an informal narrative can seek various types of data to illuminate its subject—or acknowledge the limitations of the examples it uses. In Part I of this commentary, I summarize the judicial appointment developments of the last forty or fifty years more fully than does McGahn; in Part II, I unpack what might be charitably called creative history by McGahn and other defenders of the Senate’s shutting down the 2016 Merrick Garland Supreme Court nomination; in Part III, I consider McGahn’s and others’ proposals to help change the nomination and confirmation process; and in Part IV, I summarize briefly what appear to be underlying causes of that broken process and possible consequences of a judiciary populated in no small part by judges who gained office with a minimal popular mandate for their selection
A University in 1693: New Light on William & Mary\u27s Claim to the Title Oldest University in the United States
Get PDFWilliam & Mary has traditionally dated its transformation from a college into a university to a set of reforms of December 4, 1779. On that date, Thomas Jefferson and his fellow members of the Board of Visitors reorganized William & Mary, eliminating the grammar school and the two chairs in divinity and creating chairs in law, modern languages, and medicine.Five days after the reforms were adopted, a William & Mary student wrote that “William & Mary has undergone a very considerable Revolution; the Visitors met on the 4th Instant and form’d it into a University....” Just over three years later, when Jefferson received an honorary doctorate in civil law from William & Mary, his Latin diploma stated that it was granted by the “president and professors of the university or College” (universitatis seu collegii) of William & Mary in Virginia. In the late 1770s and early 1780s, there certainly seems to have been a campaign to broadcast William & Mary’s status as a university, and William & Mary grounds its claim to be the oldest university in the United States in that historical moment. There is a strong argument to be made, however, that William & Mary became a university long before the reforms of 1779. In fact, it was granted the status of a university in its royal charter of February 8, 1693.
Few scholars appear to have noticed the relevant language in the charter.There are good reasons for that. The term used in the charter is not one that is familiar to us today. The drafters did not use the word “university.” Instead, they used a technical term for a university that developed in the Middle Ages, one that had gone out of regular use in the British Isles even by the seventeenth century. Moreover, it only really becomes clear that William & Mary was granted the status of a university in the Latin version of the charter. In the English version, the terminology is hidden behind an overly literal translation. In the English version of the charter, the one that is read every year at William & Mary’s Charter Day celebration, William III and Mary II declare that they are granting their license “to make, found, and establish a certain Place of universal Study, or perpetual College of Divinity, Philosophy, Languages, and other good Arts and Sciences.” The key words are “place of universal study.” In the English, they do not look significant. But they are a translation of a very significant phrase that appears in the Latin charter: studium generale
Feeding the World: How Changes in Biotech Regulation Can Jump-Start the Second Green Revolution and Diversify the Agricultural Industry
Get PDFAs the Earth’s population climbs from 7.7 billion in 2019 to almost 10 billion by mid-century, farmers will need to increase food production by 70 percent. This Article analyzes the tools available to achieve this demanding goal. We assess changes in agriculture related to both the organic industry and the high-tech sector that are enabling farmers to become more efficient. Critically, biotechnology offers great promise to hasten the pace of increased agricultural efficiency through genetic engineering. While genetic modification has been controversial, we cannot exclude any viable policy option, especially one with so much promise. Yet the current regulatory environment impedes bringing to market new foods produced through biotechnology and acts as a barrier to diversity for both products and producers.
Our argument is straightforward: in a world of risk versus promise, the regulation of biotechnology must be correlated with the level of risk. We advocate for a system of regulation of crops based on risk—one that is tied to the product itself, not the process that created it. The complicated, expensive, and time-consuming process currently imposed on bringing genetically engineered crops to market is divorced from the potential risks these crops actually pose. We specifically suggest adopting a single-entry point to the regulatory system, creating a registry of genetically engineered products to avoid the public perception issues that genetically modified organisms (“GMOs”) have faced to date, and shifting regulatory triggers to better associate the regulatory burden with the actual risks being put forth. Proposals by the Trump Administration in June 2019 may move regulation in the direction we have suggested, but these proposed rules present other issues. A second Green Revolution that embraces the most promising available technology can help free the future of agriculture from the control of dominant agrochemical companies and help feed the world
Concerning Catskill: Missed Opportunity, Broken Precedent and the Plight of American Waters
Get PDFAs society progresses and the population grows, uninhibited and unregulated pollution has become a pressing dilemma for current and future generations. Whether it is plastic on the beaches, oil in the oceans, or smog in the air, modern citizens of the Earth face a daily onslaught of visible consequences from the actions of polluters. But what about the not so visible consequences? Every day there is pollution occurring at a microscopic level, yet many are unaware of its presence. This infinitesimal issue is nutrient pollution, and despite its diminutive cause, it is deeply affecting one of the world’s most vital resources: water. With the Second Circuit’s reversal of the Catskill Mountains decision and the Supreme Court’s denial of certiorari, the chance to kill a nutrient-pollution-enabling EPA rule may have slipped through America’s fingers for the foreseeable future